Further Reading

Yelp’s August 2013 lawsuit alleges breach of contract, intentional interference with contract, unfair competition, and false advertising. This is only the second such case that Yelp has ever brought in its corporate history, although a third was filed in September 2013.

The strange saga gets at the heart of a fundamental question: does Yelp’s right to run its reviews site in the way it sees fit—never removing Yelp entries—trump the rights of someone who feels bullied by such a site and would prefer to have nothing to do with Yelp at all?

Specifically, McMillan, who runs a small bankruptcy law firm, asked a San Diego court earlier this week to issue an anti-SLAPP ruling. A “SLAPP,” or strategic lawsuit against public participation, is a type of lawsuit meant to stifle speech—one where one party employs tactics against a smaller target by drawing out the suit in terms of time and money and intimidating the defendant. If McMillan is successful at the November 2014 hearing before a judge—the earliest court date available—it would put a final stop to Yelp’s lawsuit.

California is one of many states to have “anti-SLAPP” provisions enshrined in law. An anti-SLAPP motion, in a sense, creates a case within a case. The judge now must rule on this motion before allowing the larger case to proceed.

"It's a huge pain in the ass,” McMillan told Ars on Tuesday in a San Francisco café. “[The motion] puts the case on pause until November. Hopefully [it] will put on pause the amount of time I have to spend on this. [I've spent] somewhere in the neighborhood of just under 300 hours [on this case].”

“It's a colossal waste of time, but given what's at stake I don't have a choice. I have to fight this to the bitter end. We're confident in the anti-SLAPP motion, but ultimately the only person whose opinion matters is Judge Lewis.”

Location, location, location

“[Yelp] offered to settle for $5,000 back in September,” McMillan said. “I don't understand why I would pay Yelp for not doing anything. They initiated a national media effort to destroy me and my business. My firm isn't something that somebody gave me, it's something that I built.”

Yelp declined to respond to Ars’ specific questions in the case beyond a short statement.

“A quick look at the motion and supporting documents—which we only just received—reveals inaccuracies and meritless arguments that we look forward to raising with the Court,” Kristen Whisenand, a Yelp spokesperson, wrote to Ars. “It is highly suspicious that McMillan has suddenly sought to pause the case altogether just before his own deadline to answer questions and produce evidence.”

McMillan told Ars that he waited to file the anti-SLAPP motion until the completion of the months-long procedure to move the case from San Francisco, where Yelp filed it, to San Diego, where McMillan practices. California law requires that such actions be filed where the defendant lives—in this case, San Diego. In December 2013, the judge sanctioned Yelp’s San Francisco-based lawyers $4,900 for not filing in the proper venue to begin with.

McMillan provided over 400 pages of court documents to Ars to show the entirety of the case.

Yelp's Whisenand herself has become involved in the case directly—she was deposed on Tuesday in San Francisco, just hours before McMillan filed his anti-SLAPP motion.

“They were too drunk to get to the bus in time”

Since Yelp’s lawsuit began in August 2013, McMillan alleges that Yelp has employed vindictive and delay tactics from the start. Beyond filing in the wrong venue, McMillan says that Yelp also has not produced documents via the discovery process.

“How has Yelp been damaged? How many fake Yelp reviews are there?” McMillan rhetorically asked this week, adding that he wished Yelp had provided such information during the discovery process.

“One of things that we asked them [for] were Yelp reviews [that have] been removed for allegedly violating terms of service. That wasn't going to happen. We've gotten zero. It's absolutely sanctionable.”

As Ars reported last year, the case is bizarre and complicated. It seems strange that Yelp would choose to suddenly focus on a small target when presumably fake Yelp reviews are happening on a daily basis across its site. Further complicating matters, Yelp’s lawsuit against McMillan was filed just days before a San Diego superior court judge was supposed to rule on Yelp’s appeal of a small claims case that McMillan filed against Yelp. McMillan had hired Yelp to provide advertising services in 2012 after receiving a cold call from an ad sales representative, but he sued Yelp in small claims court, saying that the terms of that contract were not fulfilled.

The initial small claims judge likened Yelp's practices to the Mafia, a fact that was highlighted in a local news segment on this story.

On August 26, 2013, the appellate judge dismissed the case and mandated that the parties seek binding arbitration.

As a result of this initial ruling, McMillan is now soliciting others in similar circumstances—he says he’s heard from over 1,000 people who claim to be aggrieved. McMillan shared one such e-mail that he received from Kevin Amjahdi, of Mirage Limousines, an Arizona company.

"We are Mirage Limousines. We believe we have been unfairly targeted by Yelp," Amjahdi wrote in April 2014 to McMillan. "We made the mistake of supplying a limousine/partybus to Yelp employees. After the Yelp employees’ event, the Phoenix Open, they were too drunk to get to the bus in time and the driver was forced to leave without them. This happened in February of 2013.

"Since that occurrence two of their employees posted negative reviews on Yelp about Mirage Limousines. Those reviews have remained on the front page of Yelp ever since, over a year now. No matter how many positive reviews Mirage Limousines gets, those positive reviews are immediately removed."

Beyond reimbursing his lawyer’s fees, McMillan says there would be an easy way for Yelp to end this case once and for all: simply remove his entry from Yelp forever. But Yelp says its policy is to not remove business listings.